The Deputy Chairman of Committees (Lord Strabolgi): I have to inform the Committee that if Amendment No. 184 is agreed to, I cannot call Amendment No. 184A.

Lord Mackay of Drumadoon moved Amendment No. 184:

Page 66, leave out line 37.

The noble and learned Lord said: In moving this amendment, with the leave of the Committee I shall speak also to Amendment No. 185. I am happy for Amendment No. 184A in the name of the noble Earl, Lord Mar and Kellie, to be discussed at the same time.

These are probing amendments. They seek to explore the reasons why the Government wish to have legislative control over dangerous drugs as a reserved matter and to enable the Committee to debate this important matter. The purpose of my two amendments, were they to be acceptable at a later stage, would be to allow the Scottish parliament to have legislative control over the subject matter of the 1971 Act and, by necessary implication, give the Scottish executive competence over the same matters.

Perhaps I may pre-empt an argument which I anticipate may come from the Minister who will reply; namely, that this matter is dealt with in the White Paper. Factually speaking, that is correct. However, all that the White Paper says, in a subheading in paragraph 3.3, is that among the matters to be reserved, listed in general terms, there is,

"The protection of borders and certain matters subject to border controls including",

and then various examples are given. One of those is,

"the criminal law in relation to drugs and firearms, and the regulation of drugs misuse".

I fully accept that the matter was included in the White Paper that was before the Scottish people when they voted in the referendum. However, I very much doubt whether individuals who voted in the referendum took account of the intention to reserve the misuse of drugs as a factor which bore upon their decision as to whether or not to vote yes to either of the two questions.

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The Misuse of Drugs Act covers a great variety of issues dealing with the possession of dangerous drugs: restriction on their production and supply; restriction on the cultivation of certain drugs--for example, the cannabis plant; and various other topics, including procedures for law enforcement and the punishment of offences relating to such drugs. Within that Act it is possible for any peculiarities of the Scottish position with regard to the enforcement of statutory offences to be taken account of.

I can well understand the Government's thinking in seeking to reserve this matter; namely, that there should be a common approach throughout the United Kingdom to the prohibitions against dangerous drugs and the enforcement of those prohibitions by law enforcement agencies and ultimately, when appropriate, by prosecution in the criminal court.

Having said that, and having accepted that at present there is a common statutory framework, there are nevertheless differences as between Scotland and other parts of the United Kingdom in relation to how these matters are handled, particularly in the criminal courts. The public prosecutor in Scotland has formulated certain policies as to which types of offences will be prosecuted in particular courts. He has evolved policies which he believes are relevant to Scotland. There is little doubt that different policies may apply in other parts of the United Kingdom.

More importantly, it is clear that in the sentencing of those convicted of drugs offences very different sentences are imposed in Scottish courts from those frequently imposed in English courts. It has certainly been my practical experience, when appearing for accused men in Scotland who happen to be English, that when one advises them of the sentence they are likely to receive they are amazed to discover that in some instances it may be two or three times the length that would be appropriate having regard to sentencing guidelines issued by the Court of Appeal in England. I make no criticism one way or another of the differing approaches adopted by the courts. I believe it is entirely for the courts and the judges who constitute them to decide on their policies, provided they lie within the framework of the legislation. But it illustrates that, notwithstanding the common statutory framework, it is possible at present to have different approaches to tackling the evils of the misuse of dangerous drugs.

While there may be an argument that the Scottish parliament should be free to legislate in these matters, it arises from the fact that, with law and order rightly being devolved, the issue of drugs permeates so much of our criminal law. Many crimes are committed by those who are addicted to drugs, some while they are under the influence of drugs. Many are committed to raise money to buy drugs, particularly when one talks of relatively minor, albeit upsetting and annoying, crimes such as house-breaking, bag-snatching, shop-lifting and the like. But many serious assaults and indeed murders are also committed by those involved on one side or another in the drugs trade. Those prosecutions take place with no mention of the Misuse

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of Drugs Act on the indictment but everyone involved in the case knows that drugs in part, if not wholly, lie behind the commission of the offence.

In seeking to address the problems of crime in more general policies, such as crime prevention, the care of offenders, the attempt to restrict or eliminate the suicides which unfortunately bedevil the Scottish prisons at the moment, the rehabilitation of offenders and the education of young people about the dangers of crime, one sees that, time and again, drugs are involved in the situation. Hardly a week goes by--again I make no criticism--without a Scottish Office Minister making a statement or taking part in some visit to draw attention to the problems of drugs, an issue on which the parties in Scotland have joined forces in recent years.

In these circumstances, there seems to me to be an argument for saying that the Scottish parliament should have some legislative competence over these matters. One issue on which that might prove useful is whether or not the possession of what are referred to as soft drugs might be legalised. I do not for a minute suggest that I or my party would support such a policy, but it is an issue that is debated from time to time.

Two situations might arise. This parliament might be persuaded that that was a good policy to adopt and seek to amend the 1971 Act to legalise the possession of soft drugs, while the people of Scotland, and in particular the members of their parliament, did not approve of that policy. I believe that in such a situation, the people of Scotland should have the right, by this legislative competence, to opt out of that change. One could reverse the argument. If in some years' time those in authority in the executive and the parliament are persuaded that decriminalising soft drugs might be a good way of tackling the drug problem--and perfectly respectable and highly experienced people in Scotland have from time to time suggested that this is an option worth considering--but this Parliament could not be persuaded by the British Government that that should happen, the argument arises as to why the Scottish parliament should not have the opportunity to take such action.

I am sorry to see that the noble Lord, Lord Desai, is not in his place. I am tempted to recall what he said earlier about the Tories never being prepared to depart from centralisation and to devolve power on difficult issues. This is clearly a difficult issue and it seems to me worth debating whether it should be devolved.

If it were devolved, there is no reason to believe that the power would be used irresponsibly. Whether or not we have concordats, one would anticipate that this issue would be discussed fully between officials of the Scottish executive and the United Kingdom Government. The Clause 95 order-making power would enable the Secretary of State to make any legislative changes affecting England, Wales and Northern Ireland, which would ensure that any separate law in Scotland was compatible with the law in the other parts of the United Kingdom. Indeed, there may be an argument that Clause 33 might be applicable if any problems were to arise. Ultimately, having regard to the terms of Clause 27(7), the supremacy of this Parliament would

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enable it to enact such legislation as it deemed appropriate if, for any reason, the various safeguards did not work.

This seems to me a good example of a matter on which the Government may have got the balance wrong. For that reason, I believe the matter is worthy of debate in support of my two amendments. I beg to move.

5 p.m.

The Earl of Mar and Kellie: I rise to speak to Amendment No. 184A, which is grouped with these amendments. The purpose of my amendment is to devolve the list of controlled drugs and the penalties for contravention of the Misuse of Drugs Act 1971.

Most of the effort in the war to combat drugs misuse in Scotland is to be devolved: education, health, social work, policing, prosecution and prisons. Drug misuse is a personal matter and is definitely in the social policy field. It is different in each locality and cannot be seen as a problem with Scotland-wide symptoms, let alone UK-wide symptoms. Broadly, it depends on two features: first, the level of depression and hopelessness in the locality; and, secondly, the activities of drug traffickers.

Clearly, a UK-wide policy may be too unfocused and possibly inappropriate. As the noble and learned Lord, Lord Mackay of Drumadoon, said, there are already significantly different sentencing practices. A successful drugs elimination policy might be stymied by unfocused legislation. The solution would be the devolution of that legislative framework.

We already have an example of Scotland-only drug legislation. The Licensing (Amendment) (Scotland) Act 1996 is the Scottish response to the problems of ecstasy abuse, initially in the town of Ayr and now across Scotland. There is no English equivalent of this legislation.

No doubt the Minister will mention the problem of cross-border variation. The UK already has experience of dealing with that on the land border in Ireland. I also suspect that the Minister will be unhappy at the undoubtedly childish prospect of a Scotland with legalised cannabis. I do not believe that such irresponsibility would come out of the Scottish parliament.